WNET was wrong and should be reversed
A system captures broadcast signals and makes them available to potentially millions of the system's subscribers without a license from the copyright owners; is the system engaging in a public performance of the copyrighted works involved? The obvious answer is yes. But a divided (2-1) panel of the Second Circuit held that the capture and retransmission did not constitute a "public" performance. Go figure. If transmission to a potential audience of millions is not distribution to the public, what is? In WNET.Thirteen v. Aero, Inc., 712 F.3d 676 (2nd Cir. 2013) a divided panel of the Second Circuit, felt itself bound by the prior panel decision in Cartoon Network, and held that the system operated by Aero did not infringe the public performance right of the cable television broadcasters whose programs were redistributed through the Aero system without a license, The WNET decision has been accepted by the Supreme Court on a writ of certiorari so the issue of what amounts to a "public" performance in the digital world may be resolved. The Court should reverse. Aero's system captured the cable programs on a large number of small (dime-sized) antennas. Aero customers could watch a slightly delayed streaming "broadcast" of the program and/ or reserve a copy for later viewing. The system reserved a copy of a particular program for an individual customer on a particular antenna at a given time. Once a user would watch a program, the antenna would be free for another user. The two judge majority accepted the view that the so-called "transmit clause of the "public" performance concept was not met when a copy was performed for a single person. The fundamental issue is whether a digital service that makes unauthorized transmissions of performances (or displays) copyrighted works to thousands (or millions) of paying subscribers is infringing the copyright owners' exclusive right to control public performance and display of its work. The obvious answer is yes. A service or system that does this clearly transmits the work to the "public". Yet, both Cablevision and CNET hold that this obvious proposition does not apply in the digital world if digital technology is used to create thousands (millions) of copies of the performances or display for particular individuals, who then watch their own copy. The metaphysics involved in this result is to transform the idea of transmitting a performance to the public to performing a particular copy of that performance in public. The two-judge majority expressed this as follows: First the Transmit Clause directs courts to consider the potential audience of the individual transmission. If that transmission is "capable of being received by the public" the transmission is a public performance; if the potential audience of the transmission is only one subscriber, the transmission is not a public performance, except as discussed below. Second private transmissions -- that is those not capable of being received by the public--should not be aggregated. It is therefore irrelevant to the Transmit Clause analysis whether the public is capable of receiving the same underlying work or original performance of the work by means of many transmissions. Third, there is an exception to this no-aggregation rule when private ommercial issues, but digital systems make it important. The statute transmissions are generated from the same copy of the work. In such cases, these private transmissions should be aggregated, and if these aggregated transmissions from a single copy enable the public to view that copy, the transmissions are public performances. Fourth "any factor that limits the potential audience of a transmission is relevant" to the Transmit Clause analysis This analysis ignores the policy and language of the public performance (and display) provision of the Copyright Act by focusing on performance of a copy, rather than of a work. Before the digital methods of distribution came into play, this focus on particular copies did not generate relevant issues, but it does under digital technology. The dissent in WNET captured the problem: Aereo's "technology platform" is ... a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law. After capturing the broadcast signal, Aereo makes a copy of the selected program for each viewer, whether the user chooses to "Watch" now or "Record" for later. Under Aereo's theory, by using these individual antennas and copies, it may retransmit, for example, the Super Bowl "live" to 50,000 subscribers and yet, because each subscriber has an individual antenna and a "unique recorded cop[y]" of the broadcast, these are "private" performances. Of course, the argument makes no sense. These are very much public performances. The proper analysis focuses not on how multiple copies of a performance are then displayed or performed, but on how a service or system uses the original performance to make it available to the public by whatever technology it chooses.